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Gone In A Flash: NLRB Overrules Employee Handbook Standard

12/20/17

By: William E. Collins, Jr.
On December 14, 2017, in a case involving the Boeing Company, the National Labor Relations Board (“NLRB”) overruled the Lutheran Heritage workplace policy standard that stood for over 13 years, and ushered in a new standard for workplace policies. This decision is a significant shift in labor policy, leaving many hopeful that the new standard will provide consistency and give employers a clear picture of compliance.
Under the now overruled Lutheran Heritage standard, policies, rules, and handbook provisions that appeared neutral still violated the National Labor Relations Act (“NLRA”) if an employee could “reasonably construe” the policy to prohibit protected activity. As you can imagine, discerning what an employee would “reasonably construe” often led to puzzling results.
Departing from the “reasonably construed” standard, the Boeing decision sets out that an employer’s rule violates the NLRA only if the reasonable interpretation of the policy would potentially interfere with an employee’s ability to engage in protected activity.  The NLRB will look at two factors:

(1) the nature and extent of any potential impact on the protected activity; and

(2) the legitimate justifications associated with the rule.

Under this standard, the NLRB will categorize employer rules in one of three categories:
 

	Category	Explanation
Category 1	The rule is lawful to maintain.	The rule is lawful because: (a) when reasonably interpreted the rule has no tendency to interfere with the ability to engage in protected activity; or (b) while the rule may have some tendency to interfere with an employees rights, the risk of interference is outweighed by the corresponding justifications.
Category 2	It is unclear whether the rule, as a general matter, would prohibit or interfere with an employee’s right to engage in protected activity.	These rules warrant “individualized scrutiny” to determine if there is interference and whether the interference is outweighed by the specific justifications in the case.
Category 3	The rule is unlawful.	The rule prohibits or limits an employee’s right to engage in protected activity and that limitation is not outweighed by the justifications.

 
Applying this new standard, the NLRB held that the Boeing “no-camera” policy was a Category 1 policy. While the policy requiring a camera permit to take pictures inside Boeing’s facilities could interfere with protected activity, the NLRB found that the justification for the rule outweighed this risk because it serves to protect information that is proprietary and involves national security.
While this more objective standard should remove some of the guesswork, employers are wise to revisit their employee handbooks to determine whether their policies fall into Category 1, or are at least defensible under Category 2. As you prepare your 2018 employee handbooks, members of the FMG National Employment Law Practice Group are available to assist your organization review and finalize these documents.
If you have any more questions or would like more information, please contact Will Collins at wcollins@fmglaw.com.